Fibs your e-discovery vendor and law firm may tell you—Part 2

This is part two of a two-part series. The first article in this series discussed changes in the e-discovery market, and how these changes drive misinformation and misleading statements from law firms and e-discovery vendors.

“Only an outside provider can do a ‘complete’ identification and collection.” E-discovery vendors promise that they will look everywhere for all the relevant documents. Left to their own devices, many vendors will do an unnecessarily broad collection, creating a large corpus of documents to process and review. At a recent judges conference, some large companies admitted that in some cases they overcollected by a factor of fifty. Discovery vendors run amok are certain to drive up your costs. While your discovery process needs to be defensible, this should be balanced with “reasonable, good faith efforts.” In-house counsel should not hand over the keys to anyone. Rather, they should monitor the process to ensure proper balance and avoid runaway costs. When one large international law firm was confronted with emails purporting to show how its partners were recklessly running up their client’s legal bill, the firm claimed this was only “an unfortunate attempt at humor.” I fail to see the humor. Excessive and overly broad discovery often escapes scrutiny, yet as a tremendous revenue source for law firms it risks abuse.

“We will create a custom data map to accelerate the process.” Many law firms boast their data mapping expertise. But who owns the data map, and can the companies use these maps themselves? Unfortunately, many of the data maps tend to be self-serving for the law firm and e-discovery vendor, and less for their clients. We were asked to review one data map for a client prepared by an outside law firm. Buried within the details of the data map were specific instructions on locating the client’s data: “In order to find this content, please call us.” Often the data mapping process is not an “open map,” but rather a proprietary process used by firms as an early on-ramp for firms hoping to be hired as litigators.

“You shouldn’t store discovered documents in a compressed format.” One e-discovery vendor touted that the storage systems in its data center were configured to store clients’ case-related files with no compression. Some of the programs that create .zip files can change time stamps and other metadata, and these types of programs should be avoided for transporting data. However, once files are migrated and stored on a disk, I am not aware of any data storage hardware that, properly configured, could corrupt metadata, as even compressed files remain forensically intact. Why was this vendor avoiding compression on their disks? Perhaps less-compressed data uses more capacity resulting in higher storage fees for the vendor, all while making the false claim of preservation of metadata. There are instances where less compression is required for better performance, but I have seen instances where the e-discovery vendor configured almost no compression, even when performance was not an issue.

“We have competitive prices.” Too often we have seen companies that need to find a discovery vendor for a short, near-term litigation, and they choose these vendors based on price, among other things. However, most vendors have opaque pricing models, making it difficult to compare them across the board, with per-gigabyte fees at various points in the discovery funnel and hidden fees for common tasks and features. Unfortunately, sometimes short-term litigation does not end up being short, and many companies find their vendors processing and hosting as much as ten times more data than anticipated. But in the rush to find a provider, few companies think this far ahead, and many of these contracts have no provisions for better terms, and it is hard, if not impossible, to switch vendors mid-stream. Companies should ask “what-if” questions, and provide a mechanism for renegotiation of the scope if the discovery exceeds initial estimates.

“You have to be e-discovery certified.” Within the past two years a number of e-discovery certification programs have popped up. Many in-house counsel are partial to the stamp of approval a certification implies. While additional training on e-discovery is good, none of these programs are recognized by either by the bar associations or the courts. It is not true that work performed by a “certified” vendor is more defensible than the same work performed by equally competent “uncertified” vendors.

To be clear, there are a number of ethical, hard-working discovery service providers at law firms and vendors that provide value for their clients. However, changes in the industry are driving some providers into desperation, and they are reacting with misinformation and in some cases outright lying. It is often very difficult to evaluate a law firm or vendor’s e-discovery capability before engaging them. Perhaps the best approach is to listen to what they say, and ask yourself if you can trust them.

Key Takeaways

New technologies and maturing practices are allowing for more discovery efforts to be handled in-house

Vendor pricing models are often not clear, and may be difficult to renegotiate later

E-discovery certification may be helpful, but does not necessarily lend defensibility